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16-0916_CENTER FOR NATURAL LANDS MANAGEMENT_Management AgreementAGREEMENT FOR MANAGEMENT OF THE CITY OF SAN JUAN CAPISTRANO OPEN SPACE FUND This AGREEMENT FOR THE MANAGEMENT OF THE CITY OF SAN JUAN ., CAPISTRANO OPEN SPACE FUND ("Agreement") is made and entered into this $f day of Serhrlû f ,2016, ("Effective Date") by and between the City of San Juan Capistrand ("City") and the Center for Natural Lands Management ("CNLM"), (individually a "Party" and together the "Parties") as set forth below. RECITALS A. The purposes ("Purposes") of this Agreement are to (1) establish a fund to be held by CNLM for the benefit of open space located within the City of San Juan Capistrano specifically as related to coastal California gnatcatcher (Polioptila californica californica) ('CAGN') and coastal sage scrub ('CSS") habitat ("Open Space Fund") and (2) set forth the Parties' respective responsibilities with respect to the funds to be held in and administered from the Fund. B. CNLM is a tax-exempt nonprofit organization qualified under $501(c)(3) of the lnternal Revenue Code of 1986 and qualified to do business in the State of California. CNLM has as its primary purpose the management of land in an environmentally and biologically beneficial manner consistent with state and federal environmental laws. CNLM is qualified for and committed to the protection of wetlands and wildlife habitat. CNLM has been accredited by the Land Trust Accreditation Commission, an independent program of the Land Trust Alliance. C. CNLM has the professional skills, ability, and capacity (organizational and financial) to hold and manage the Open Space Fund ("Fund Holder") and to manage protected open space habitats and their conservation values ("Land Manager"). D. CNLM shall be the trustee of the Open Space Fund. CNLM complies with accounting practices established by the FinancialAccounting Standard Board ('FASB') E. City is a municipal corporation and general law city of the State of California duly organized and validly existing under the Constitution and laws of the State of California. F. The United States Fish and Wildlife Service ('USFWS'), an agency within the United States Department of the lnterior, has jurisdiction overthe conservation, protection, restoration, and management of fish, wildlife, native plants, and the habitat necessary for biologically sustainable populations of these species within the United States pursuant to the Endangered Species Act, 16 U.S.C. 51531, ef seq. ("ESA"), the OPEN SPACE FUND MANAGEMENT AGREEMENT City of San Juan Capistrano Open Space Page 1 ofB Fish and Wildlife Coordination Act, 16 U.S.C. 55661-666c, the Fish and Wildlife Act of 1956, 16 U.S.C. 5742(f), ef seq., and other provisions of Federal law. G. The California Department of Fish and Wildlife ("CDFW'), a division of the State of California, has jurisdiction over the conservation, protection,.restoration, and management of fish, wildlife, native plants and the habitat necessary for biologically sustainable populations of these species within the State of California pursuant to Fish and Game Code 51802; CDFW is also authorized to hold easements for these purposes pursuant to California Civil Code S815.3, Fish and Game Code $1348, and other provisions of California law. H. USFWS and CDFW are each individually a "Wildlife Agency" and collectively, the "Wildlife Agencies." L Pursuant to the Special 4(d) Rule lnterim Habitat Loss Permit for Tentative Tract Map 14196 (Pacific Point Project), County of Orange, issued by the Wildlife Agencies on January 31,1997, and as revised on February 11,2015 and October 13, 2015 ("Special4(d) IHLP'), Pacific Point Development Partners LLC (the "Developer"), the owner and developer of the Pacifica San Juan residential development project located in City was required to establish the Open Space Fund to be used for future additional restoration/ enhancemenV conservation of open space within City. The Open Space Fund is not an endowment, that is, the monies are not permanently restricted but rather are intended to be temporarily restricted and fully disbursed pursuant to the terms of this Agreement. J. ln accordance with the Special 4(d) IHLP, the Developer has deposited $355,000 into an escrow account that is controlled by the City in order to establish the Open Space Fund and to pay for the Open Space Fund Setup Fee, as further defined below. K This Agreement does not govern nor address any matters relating to operations or conservation policies; mitigation compliance; the application for or use of grants; property management; and stewardship, or any similar undertaking. L. Any inconsistencies between the Special 4(d) IHLP and this Agreement relating to how the monies are to be held and/or spent are to be resolved in favor of the terms of this Agreement. AGREEMENT NOW, THEREFORE, in consideration of the foregoing recitals, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows. OPEN SPACE FUND MANAGEMENT AGREEMENT City of San Juan Capistrano Open Space Page 2 of B 1. Open Space Fund. The Parties to this Agreement agree to establish an Open Space Fund for additional restoration, enhancement, conservation, and stewardship of open space located within the City as provided by the Special 4(d) IHLP a. Establishment of the Open Space Fund. Within twenty (20) days following the execution of this Agreement, the City shall transfer $355,000 from the escrow account to the Fund Holder. Fund Holder shall establish and hold the dedicated Open Space Fund account and shall deposit funds ("Deposit") received as provided by the Special 4(d) IHLP into the account promptly upon receipt, but no later than twenty (20) days after receipt, to establish the Open Space Fund. b. Deposit. The Deposit in the Open Space Fund shall be in the amount of Three Hundred Fifty Thousand Dollars ($350,000.00). c. Disbursement of funds from the Open Space Fund. For the Purposes of this Agreement, Fund Holder shall disburse funds, beginning in the fiscal year following establishment of the Open Space Fund, from the Open Space Fund as provided by this Subsection 1(c): (1) FiscalYear. Fiscal Year means the period from October 1 to September 30. (2) Disbursement Amount. By September 1 of each year, the Open Space Land Manager shall prepare and submit to the City and Wildlife Agencies a habitat management work plan ("Work Plan"), in a form designed by City, for review and approval. The City, with the written concurrence of the Wldlife Agencies, shall direct the Fund Holder to disburse from the Open Space Fund an Annual Disbursement Amount sufficient to fund the Work Plan, including funds to cover the reasonable expenses of the Land Manager in preparing the Work Plan. (3) Disbursement Schedule. The City demand to Fund Holder for an annual disbursement ("Annual Disbursement") shall be made on or about October 1 of each Fiscal Year, with such request being specific as to an amount of disbursement sought. Fund Holder shall release by November 15 of the Fiscal Year the Disbursement Amount to whom and as directed by City. 2. Fees and Annual Reportinq a. Setup Fee. Fund Holder, concurrently with the execution of this Agreement, is entitled to an initial administrative fee ("Open Space Fund Setup Fee") of Five Thousand Dollars ($5,000.00) payable concurrent with the OPEN SPACE FUND MANAGEMENT AGREEMENT City of San Juan Capistrano Open Space Page 3 of B execution of this Agreement. This amount is separate and shall not be drawn from the Deposit. b. Annual Financial Reportinq. Within 180 days of the close of each Fiscal Year, Fund Holder shall provide to Wildlife Agencies and the City an annual financial report ("Annual Financial Report") containing that information required by the Wildlife Agencies and the City, including, but not limited to, the total amount within the Open Space Fund at the end of the Fiscal Year, investment profit or loss, fees, and funds expended to implement activities described in the Work Plan. Fund Holder, as fiduciary of the Open Space Fund, is not obligated under this Agreement to file any reports under Special 4(d) IHLP or relating to conserved habitat management, operations, stewardship expenses, or conservation policies, including mitigation compliance, the application for or use of grants, the creation, recording, or implementation of conservation easements, biological monitoring, property management and stewardship, or any similar undertaking. 3. Manaqement of Funds bv Fund Holder. As required by the State of California charitable trust and other laws, Fund Holder has sole fiduciary duty to ensure that the Open Space Fund is properly managed. The following principles of fiduciary duty shall apply: a. Accountinq. Fund Holder shall maintain an accurate accounting of funds in the Open Space Fund, such accounting will be separate from all other accounting of funds held by or managed by Fund Holder. Funds in the Open Space Fund may be pooled with other funds held by or managed by Fund Holder for investment purposes. b. Duty of loyalty. Fund Holder shall have a duty of loyalty and shall not use funds in the Open Space Fund for its own benefit. c. Prudent investor. Fund Holder shall act as a prudent investor of the Open Space Fund subject to the Uniform Prudent Management of lnstitutional Funds Act and shall account for Open Space Funds under General Accepted Accounting Principles ('GAAP'). d. Auditinq. Fund Holder shall have an annual audit performed by a qualified, independent accounting organization. Fund Holder shall submit the auditor's written report to Agencies and the City upon request. e. Commingling of Funds. There shall be no commingling of the Open Space Fund with other funds. Funds may be pooled for investment management purposes only. OPEN SPACE FUND MANAGEMENT AGREEMENT City of San Juan Capistrano Open Space Page 4 of B f. Fund Holder shall not delegate the responsibility for managing the funds to a third party, but may delegate authority to invest the funds with the Fund Holder's oversight; provided, however, that the Fund Holder shall act with prudence when delegating authority and in the selection of agents. 4. Miscellaneous Provisions. a. Amendment. Neither this Agreement nor any provision hereof may be waived, modified, amended, or discharged except by an instrument in writing signed by the Parties, with the prior written concurrence of the Wildlife Agencies, and in accordance with California charitable trust law. b. Entire Aqreement. This Agreement and the attached exhibits constitute the entire understanding among the Parties with respect to the matters set forth herein and supersede all prior or contemporaneous understandings or agreements among the Parties with respect to the subject matter hereof, whether oral or written. c. Severability. lf a court of competent jurisdiction determines that a provision included in this Agreement is legally invalid, illegal or unenforceable, and such decision becomes final, such provision shall be deemed to be severed and deleted from this Agreement and the balance of this Agreement shall be reasonably interpreted to achieve the intent of the Parties. The Parties further agree to replace such void or unenforceable provision of this Agreement with a valid and enforceable provision that will achieve, to the extent possible, the purposes of the void or unenforceable provision. d. Counterparts. This Agreement and any amendment thereto may be executed in two or more counterparts, and by each Party on a separate counterpart, each of which, when executed and delivered, shall be an original and all of which together shall constitute one instrument, with the same force and effect as though all signatures appeared on a single document. e Assiqnment. This Agreement may not be assigned f. Term and Termination. This Agreement shall terminate automatically upon the depletion of the Open Space Fund by the Fund Holder. Fund Holder shall notify the Wildlife Agencies and the City of this termination upon the depletion of the Open Space Funds with a copy of a final accounting showing the deposits (including interest accrued thereon) and disbursements of all sums received pursuant to this Agreement during the life of this Agreement, together with such other documents that the Wildlife Agencies and the City may reasonably request. lf the Open Space Fund has not been depleted, then this Agreement may be terminated by: (1) the City, with the written concurrence of the Wildlife Agencies, or (2) by the Fund Holder. lf the City or the Fund Holder terminate this Agreement, with or without cause, either Party must provide at least thirty (30) days prior written notice to the other Party or their successors, and to the Wildlife Agencies. The City, with the written concurrence of the OPEN SPACE FUND MANAGEMENT AGREEMENT City of San Juan Capistrano Open Space Page 5 of B Wildlife Agencies shall appoint a successor to the Fund Holder. Within ninety (90) days following delivery of the monies in the Open Space Fund to an approved successor, Fund Holder shall provide the Wildlife Agencies and the City a copy of a final accounting showing the deposits (including interest accrued thereon) and disbursements of all sums received pursuant to this Agreement during the life of this Agreement, together with such other documents that the Wildlife Agencies and the City may reasonably request. Upon delivery of the monies in the Open Space Fund to successor fund holder and final accounting specified above, Fund Holder's obligations under this Agreement shall cease and terminate. g. Rights and Remedies. ln the event of a breach of this Agreement, the Parties have any rights and remedies provided by law or equity, including but not limited to the right to damages, injunction and specific performance. Neither Party shall be considered in breach of its obligations to the extent that the performance of such obligations is prevented or delayed by any cause, existing or future, which is beyond the reasonable control of such Party. h. Controllinq Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. Any legal action, court proceeding, or arbitration, to construe or enforce this contract or otherwise to resolve any dispute between the parties based on this Agreement, shall be commenced and maintained in an appropriate court or other forum in Orange County, California. i. Attornevs' Fees. Should either Party bring an action against the other Party, by reason of or alleging the failure of the other Party with respect to any or all of its obligations hereunder, whether for declaratory or other relief, then the Party which prevails in such action shall be entitled to its reasonable attorneys' fees (of both in-house and outside counsel) and expenses related to such action, in addition to all other recovery or relief. A Party shall be deemed to have prevailed in any such action (without limiting the generality of the foregoing) if such action is dismissed upon the payment by the other Party of the sums allegedly due or the performance of obligations allegedly not complied with, or if such Party obtains substantially the relief sought by it in the action, irrespective of whether such action is prosecuted to judgment. Attorneys' fees shall include, without limitation, fees incurred in discovery, contempt proceedings and bankruptcy litigation, and in any appellate proceeding. The non-prevailing Party shall also pay the attorney's fees and costs incurred by the prevailing Party in any post- judgment proceedings to collect and enforce the judgment. The covenant in the preceding sentence is separate and several and shall survive the merger of this provision into any judgment on this Agreement. j. Notices. Any written notice or communications required by this Agreement shall be personally delivered or sent by first class mail, certified or registered, postage prepaid, or sent by national overnight courier, with charges prepaid for next business day delivery, addressed to the addressee Party and to each Wildlife Agency at its address or addresses listed below, or to such other address or addresses OPEN SPACE FUND MANAGEMENT AGREEMENT City of San Juan Capistrano Open Space Page 6 of 8 as such Party or Wildlife Agency may from time to time designate by notice in the manner provided in this paragraph. Notices shall be deemed received upon actual receipt by the party or Wildlife Agencies being sent the notice, or on the following business day if sent by overnight courier, or on the expiration of three (3) business days after the date of mailing. To CNLM Center for Natural Lands Management 27258 Via lndustria, Suite B Temecula, CA 92590-3751 Attention: ExecutiveDirector Telephone: (760)731-7790 To CDFW:Department of Fish and \Mldlife South Coast Region 3883 Ruffin Road San Diego, CA 92123 Telephone: (858) 467-4201 To USFWS United States Fish and Wildlife Service 2177 SalkAvenue Carlsbad, CA 92008 Attention: Field Supervisor Telephone: (760)431-9440 To City City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CÁ.92675 Attention: City Manager Telephone: (9a9) 493-1171 k. Authorization. Each signatory below attests that he or she is duly authorized to execute this Agreement on behalf of the Party he or she represents. l. Time is of the Essence. Time shall be of the essence with respect to the obligations of the parties to this Agreement. m. Waiver. No delay or omission to exercise any right, power, or remedy accruing to a Party under this Agreement shall impair any right, power, or remedy of that Party, nor shall it be construed as a waiver of, or consent to, any breach or default. No waiver of any breach, any failure of a condition, or any right or remedy under this Agreement (1) shall be effective unless it is in writing and signed by the party making the waiver; (2) shall be deemed to be a waiver of, or consent, to any other breach, failure of a condition, or right or remedy, or (3) shall be deemed to constitute a continuing waiver unless the writing expressly so states. OPEN SPACE FUND MANAGEMENT AGREEMENT City of San Juan Capistrano Open Space Page 7 of B lN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their respectively duly authorized representatives. CITY OF SAN JUAN CAPISTRANO By: Title: Date 1- /l-16 CENTER FOR NATURAL LANDS MANAGEMENT By: David R. B runner PresidenVExecutive Director Date: 813012016 OPEN SPACE FUND MANAGEMENT AGREEMENT City of San Juan Capistrano Open Space Page 8 of B